On January 14, 2022, the Supreme Court granted certiorari to determine whether a school district was within its rights to tell a coach not to continue kneeling and praying at the 50-yard line after his team’s games. .

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From 2008 to 2015, Joseph Kennedy worked as an assistant college football coach for a public school, Bremerton High School. As a devout Christian, Kennedy used to kneel in the middle of the field to pray immediately after each game. These prayers were usually silent and lasted 30 seconds, but were in full view of players and spectators. Over time, players began to join in, and the prayers turned into short religious-sounding motivational speeches, delivered at the fifty-yard line as the football players knelt around the coach. . At least one player complained privately about participating in the prayers, but feared losing game time if they didn’t join. Bremerton School District (“the District”) policies for religion-related activities and practices did not explicitly address religious expression by service personnel, but the district twice directed Kennedy to avoid any demonstrative religious activity in front of the students. The coach posted on Facebook that he “could have been fired for praying” and denounced the district’s guidelines in local and national media appearances. When the coach continued his postgame prayers, the district placed him on paid administrative leave. After Kennedy’s contract expired at the end of the 2015 season, he opted not to reapply.

The coach sued the district, alleging that he violated his rights under the free speech and free exercise clauses of the First Amendment.

Freedom of expression and free exercise clauses

This case puts two fundamental constitutional principles on a collision course. Freedom of expression and free exercise clauses protect private religious speech. The Establishment Clause prohibits public schools from conveying or attempting to convey a message that religion or a particular religious belief is favored or preferred. In Garcetti vs. Ceballosthe United States Supreme Court addressed the perennial question of when a government employee’s religious expression is protected by the Free Speech and Free Exercise Clause or prohibited by the Establishment Clause: “[W]when public employees do statements in the course of their official duties, employees do not speak as citizens for purposes of the First Amendment, and the Constitution does not insulate their communications from employer discipline. 547 US 410, 421 (2006) (emphasis added).

Ninth Circuit ruling and initial Supreme Court appeal

In 2017, the Ninth Circuit ruled that Kennedy offered his prayers “as a public employee” and therefore was not entitled to First Amendment protections. The coach appealed to the Supreme Court, which declined to hear the case until the Ninth Circuit finally determines whether Kennedy lost his job because of his religious expression or for some other reason. Judge Alito, joined by Judges Thomas, Gorsuch and Kavanaugh, agreed with the denial, but took the unusual step of writing separately to express serious doubts about the Ninth Circuit’s finding: “The Ninth Circuit’s understanding of the rights to free speech for public school teachers is troubling and may warrant future scrutiny. On remand, the district court found that the district suspended Kennedy because of the “risk of constitutional liability associated with the ‘religious expression of Kennedy’ and entered summary judgment for the district. The Ninth Circuit asserted, stating, “[o]your outfit. . . did not change.”

The Ninth Circuit again argued that the coach’s prayers were government speech by a public employee, pointing out that Kennedy was “clothed in the mantle of one who imparts knowledge and wisdom,” and on the football field d a public school – “a place he only had access to because of his job” – at a time when he was “generally in charge of communicating with students”. The Ninth Circuit went even further, writing that even though the coach’s prayers were private speech, the district’s response was permissible point of view discrimination. In the opinion of the Ninth Circuit, the district had every right to be concerned about a violation of the Establishment Clause because Kennedy’s religious expression could be imputed to the District unless the District terminated it.

Second appeal to the Supreme Court

The coach appealed again, imploring the Supreme Court to “confirm that a public school does not own every on-the-job expression that its teachers or coaches may make around students, and that the First Amendment does not require that schools purge from the public sphere anything that is in any way religious. This time, the Court granted certiorari. As noted in Kennedy’s motion, the “threshold issue” for the Supreme Court is whether “the coach’s religious expression belongs to Kennedy or the government.”

What does this mean for you?

The Court is expected to hear oral argument in April 2022 and issue an opinion in the summer of 2022. Since August 2017, when the Ninth Circuit issued its first opinion in this case, the composition of the Supreme Court has changed dramatically. Justice Kennedy retired in 2018 and Justice Ginsburg died in 2020. Justice Gorsuch joined the Court in 2017, followed by Justice Kavanaugh in 2018 and Justice Barrett in 2020. Since the new conservative majority in the Supreme Court has protected individual religious rights, many observers expect this case to be decided in favor of the former coach. Regardless of the outcome, this case has the potential to reshape the legal parameters of religious expression in K-12 public schools. If the Supreme Court strikes down the Ninth Circuit, the First Amendment rights of public school employees will be expanded, particularly with respect to religious speech and conduct. Depending on how the Supreme Court ultimately reconciles the free exercise clause and the establishment clause, K-12 schools may need to rethink their existing policies and practices regarding religious expression by employees. We will continue to follow this file.

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